
MUMBAI: A series of recent court orders directing the release of accused individuals on the grounds of "illegal arrests" have dealt a significant blow to investigative agencies, with prosecution lawyers calling for a balanced approach while defense counsel stress the importance of adhering to legal norms.
In many of these cases, the arrests were made without "due consideration," according to defense attorneys, while prosecution lawyers emphasise the protection of victims' rights.
In December 2024, the Central Bureau of Investigation (CBI) arrested six individuals, including two IRS officers, in a bribery case. However, a special court in Mumbai denied the CBI custody of the accused, ruling their arrests as "illegal" and ordering their immediate release.
Over the past six months, several remand requests from probe agencies such as the CBI, Enforcement Directorate (ED), and local police have met with similar setbacks in courts.
In most instances, defense arguments focused on the failure of investigation agencies to comply with the provisions of the Bharatiya Nagarik Suraksha Sanhita, such as not maintaining case diaries properly, failing to provide the grounds for arrest to the accused promptly, or not presenting the arrested individual in court within 24 hours.
Advocate Rahul Agarwal, who has represented several accused individuals, stated, "Investigation agencies are not following the provisions laid down by law, nor the guidelines set by the Supreme Court and High Courts in both letter and spirit. The Supreme Court's guidelines clearly state that a physical ground for arrest must be provided to the accused; otherwise, the arrest will be declared illegal."
In the bribery case involving IRS officers, the special CBI court observed that the case diary contained loose sheets, which was a violation of legal provisions, according to a ruling by the Bombay High Court. The court emphasised that investigation officers must ensure all case papers are properly maintained.
In another setback for the CBI, the court refused to grant a transit remand for ED officer Vishal Deep, who was arrested in a bribery case. The court ruled that the prosecution's failure to produce the case diary undermined its case and deemed the arrest illegal.
The ED also faced embarrassment last year when a special PMLA court ordered the release of businessman Purushottam Mandhana, who was accused in a money laundering case, due to the failure to provide the grounds for arrest and a copy of the "reasons to believe" that he was guilty of the offense.
Local police have also experienced rejections of their remand requests for improper arrests. Recently, a magistrate court ordered the release of a man who had allegedly posted a manipulated video of Chief Minister Devendra Fadnavis’s speech on Naxalism online.
In a rare victory for the police, a sessions court last month criticized a magistrate for taking a "hyper-technical view" and declaring the arrest of film producer Gunwant Jain, accused of rape, as "illegal." The arrest was deemed improper because the police had been just four minutes late in informing the accused of the grounds for his arrest. The sessions court ordered Jain to surrender to the police.
Senior advocate Satish Maneshinde criticised the arrests as "mechanical" and lacking "application of mind." He added, "The police officers often do not apply sufficient thought, and as a result, the prosecution violates the principles of natural justice and the fundamental rights of the accused."
However, advocates representing the state have called for a balanced approach, stressing the importance of victims' rights.
"Why should a victim suffer because of mistakes made by investigation agencies?" they asked.
Senior special prosecutor Ujjwal Nikam, who has represented the state in numerous high-profile cases, including the 1993 Mumbai bomb blasts case, argued for a balanced approach. He stated that probe agencies should be allowed the opportunity for custodial interrogation of the accused.
"No doubt, it is mandatory for the grounds of arrest to be informed to the accused and their family, so that the personal liberty of the accused is not jeopardized," Nikam said. "However, some hard-to-crack accused individuals require custodial interrogation, which does not mean ill-treatment, but rather, persistent questioning."
Special Public Prosecutor Shishir Hire also advocated for victims' rights, stating, "If an accused is absconding, they are aware that the police are after them, and they know the reason for their arrest. Therefore, routine legal parameters cannot be applied to absconding accused."
He also mentioned the concept of victimology, which takes into account the impact of crimes on victims.